Lopez Orellana v. Garland

Case: 23-60248 Document: 78-1 Page: 1 Date Filed: 09/18/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

September 18, 2024

No. 23-60248

Lyle W. Cayce

____________ Clerk

Astrid Dariana Lopez Orellana,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent.

______________________________

Appeal from the Department of Homeland Security

Agency No. A201 427 666

______________________________

Before Higginbotham, Stewart, and Higginson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

The question presented here is whether the Louisiana accessory-after-

the-fact statute, LA. REV. STAT. § 14:25, is a categorical match for the generic

federal offense of obstruction of justice and is therefore an aggravated felony

under 8 U.S.C. § 1101(a)(43)(S) permitting expedited removal of a

noncitizen. Because the generic federal offense requires specific intent, and

the Louisiana Supreme Court has explicitly maintained that the state statute

requires only general intent, we find that it is not a match. Accordingly, we

GRANT Lopez’s petition for review, VACATE the final order of removal,

and REMAND to the Department of Homeland Security (“DHS”) for

further proceedings in accordance with this opinion.

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No. 23-60248

I.

In this case, petitioner Astrid Dariana Lopez Orellana argues that she

was improperly placed in expedited removal and then removed without an

opportunity to challenge the legal basis of that removal order, in

contravention of her due process rights. Given the nature of her challenge

and the complexity of the expedited removal process, we will provide a brief

overview of that process and 8 C.F.R. § 238.1(b), the regulation that governs

it.

Administrative removal under 8 U.S.C. § 1228(b) authorizes DHS to

order removal of some noncitizens without a hearing before an Immigration

Judge (“IJ”). This includes those noncitizens who are convicted of

aggravated felonies, who “shall be conclusively presumed to be deportable

from the United States.” 8 U.S.C. § 1228(c). The first step of an

administrative removal proceeding is service to the noncitizen of the Notice

of Intent to Issue a Final Administrative Removal Order (“NOI”). 8 C.F.R.

§ 238.1(b)(2). The NOI must allege three predicates necessary to establish

that a noncitizen is eligible for administrative removal: 1) she is an alien, 2)

she has not been lawfully admitted to the United States, and 3) she has a final

conviction for an aggravated felony. Id. at § 238.1(b)(1), (b)(2)(i). A recipient

also must be informed of her rights, including the right to counsel at no

expense to the government, the right to rebut the charges against her, and the

right to request withholding of removal if she fears persecution or torture in

the country to which she would be removed. Id. at § 238.1(b)(2)(i).

Pursuant to 8 C.F.R. § 238.1(c)(1), a noncitizen has 10 days to respond

before the Final Administrative Removal Order (“FARO”) is issued and can

be served on her. If the noncitizen does not file a response, or concedes

removability, a DHS officer can issue the FARO, which may not be executed

for 14 days without written waiver by the noncitizen. 8 U.S.C. § 1228(b)(3);

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8 C.F.R. § 238.1(f)(1). If the FARO is issued and the noncitizen requests

withholding relief, the DHS officer must refer the case to an asylum officer

for a reasonable fear interview. 8 C.F.R. § 238.1(f)(3). If the asylum officer

determines that the noncitizen has a reasonable fear of persecution or torture,

the case is transferred to an IJ for withholding proceedings. Id. at § 208.31(e).

If the asylum officer determines she does not have a reasonable fear of

persecution or torture, the noncitizen may seek review from an IJ. §

208.31(g). If the IJ upholds the asylum officer’s adverse determination, the

FARO may be executed. Id.

***

Having described the administrative removal process, we now turn to

the facts of this case.

Lopez entered this country without inspection in 2019, when she and

her mother arrived after fleeing from threats by the 18th Street Gang in their

native Honduras. At that time, she was fifteen years old. On April 5, 2022,

she was convicted of accessory after the fact to armed robbery with a firearm

under La. Rev. Stat. § 14:25.1

On December 8, 2022, she was taken into ICE custody. This case

concerns her designation as an aggravated felon and the process she was

afforded after. On December 27, 2022, DHS issued a FARO, which alleged

that her § 14:25 conviction rendered her removable pursuant to 8 U.S.C.

§ 1227(a)(2)(A)(iii) because it was an aggravated felony within the meaning

of crime of violence, as defined by 8 U.S.C. § 1101(a)(43)(F). DHS then

_____________________

1

Lopez was arrested in early 2021 and placed in pretrial custody until April 5, 2022,

when she pleaded guilty. The same day, she was sentenced with credit for time served, and

she was on probation when she was detained by Immigration and Customs Enforcement

(“ICE”).

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issued and served her with a NOI only after the FARO, informing Lopez that

it intended to remove her.

Lopez requested withholding or deferral of removal, and on January

6, 2023 she had a reasonable fear interview with an asylum officer. The

asylum officer determined that she was credible and had a reasonable fear of

return to Honduras, because she and her mother had suffered persecution by

the 18th Street Gang after her father had fled the gang, including the murder

of her relatives and death threats left at her mother’s home. On January 11,

2023, her case was referred to an IJ for proceedings in accordance with 8

C.F.R. § 208.31(e). On January 17, 2023, Lopez attended an initial hearing

with the IJ.

On January 20, 2023, DHS canceled its original NOI and issued a new

NOI alleging that her § 14:25 conviction was an aggravated felony relating to

the obstruction of justice under § 1101(a)(43)(S), rendering her removable.

The same day, it issued a new FARO on the finding that she was removable

due to the obstruction of justice aggravated felony, though it did not serve

her with that FARO at that time.

In immigration court on February 28, 2023, Lopez, through pro bono

counsel, made an oral motion to terminate the withholding-only proceedings.

In her oral motion, she attempted to challenge DHS’s issuance of the revised

NOI and the FARO on the same day—which, she argued, contravened

procedures set out in the expedited removal regulations 8 U.S.C.

§ 1228(b)(1)-(2) and 8 C.F.R. § 238.1(b)(1). She also attempted to challenge

DHS’s failure to serve the FARO in a timely manner before referring her to

proceedings in front of the IJ, also in contravention of 8 C.F.R. § 238.1

procedures. The government opposed that motion to terminate, and the IJ

denied it, stating that he did not have power over DHS’s internal procedures.

The IJ denied Lopez’s motion for reconsideration on March 14, 2023. After

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Lopez was finally served with the FARO on April 10, 2023, she timely

petitioned this court for review.

Lopez challenges the classification of her § 14:25 conviction as an

aggravated felony and raises a due process claim. With respect to the former,

she argues that the Louisiana accessory-after-the-fact statute is not a

categorical match for the generic federal definition of an 8 U.S.C. §

1101(a)(43)(S) obstruction of justice felony that is accepted by the BIA and

this circuit: First, she argues that the Louisiana statute requires only general

intent while the federal analogue requires specific intent. Second, Lopez

argues that the generic federal definition requires knowledge that a felony has

occurred, while a person can be convicted under La. Rev. Stat. § 14:25

with only a “reasonable ground to believe” that a felony has occurred.

Finally, Lopez contends that she suffered prejudice from DHS’s failure to

conduct the expedited removal process according to the guidelines set out in

8 C.F.R. § 238.1 because that failure prevented her from adequately

challenging the aggravated felon designation or her removal. The

government contests each of these arguments.

II.

Under 8 U.S.C. § 1228(b), “the Attorney General [may] expedite

removal of an alien who is not a lawful permanent resident and who is

deportable for committing an aggravated felony.” Valdiviez-Hernandez v.

Holder, 739 F.3d 184, 187 (5th Cir. 2013). This court has jurisdiction over

final orders of removal, 8 U.S.C. § 1252(a)(1), and has treated a FARO as

such, see Valdiviez-Hernandez, 739 F.3d at 186-88. Lopez’s petition for

review of the FARO is timely filed because it was received within 30 days of

the date the FARO was served on her. Ouedraogo v. INS, 864 F.2d 376, 378

(5th Cir. 1989); Fosu v. Garland, 36 F.4th 634, 637 (5th Cir. 2022); 8 U.S.C.

§ 1252(b)(1).

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Lopez challenges the classification of her § 14:25 conviction as an

aggravated felony and raises a due process claim. This court generally lacks

jurisdiction to review removal orders grounded in aggravated felony

convictions but retains jurisdiction to consider constitutional and legal

challenges to such orders. 8 U.S.C. § 1252(a)(1), (2)(C)-(D). A FARO is

amenable to judicial review as to constitutional claims and questions of law.

Valdiviez-Hernandez, 739 F.3d at 187-88; 8 C.F.R. § 238.1(h). Lopez’s due

process claim and her challenge to the classification of her § 14:25 conviction

are thus reviewable, and they are considered de novo because they concern

only questions of law. See 8 U.S.C. § 1252(a)(2)(D); Rodriguez v. Holder, 705

F.3d 207, 210 (5th Cir. 2013); Santos-Alvarado v. Barr, 967 F.3d 428, 439 (5th

Cir. 2020).

III.

The disposition of Lopez’s due process claim turns on the disposition

of her claim that her § 14:25 conviction does not render her removable, as

prevailing on the latter claim could show that she was prejudiced by not being

able to challenge the classification of this conviction as an aggravated felony

during her administrative proceedings. See Arteaga-Ramirez v. Barr, 954 F.3d

812, 813 (5th Cir. 2020). Accordingly, we will begin with the question of

whether the Louisiana statute under which she was convicted is an

aggravated felony offense related to the obstruction of justice pursuant to 8

U.S.C. § 1101(a)(43)(S) before examining her due process claim.

A.

To determine whether a state conviction qualifies as an aggravated

felony under 8 U.S.C. § 1101(a)(43), courts use the categorical approach.

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). Under this approach, a court

looks not to the specific details of a noncitizen’s prior conviction, but to the

state statute under which she was convicted. Id. If the definition of the state

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offense matches the “generic” federal definition of an offense, then it is said

to be a “categorical” match for the offense listed in the Immigration and

Nationality Act (INA). Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186 (2007)

(citing Taylor v. United States, 495 U.S. 575, 599-600 (1990)). A court

“presume[s] that the conviction ‘rested upon [nothing] more than the least

of th[e] acts’ criminalized, and then determine[s] whether even those acts

are encompassed by the generic federal offense.” Moncrieffe, 569 U.S. at 190-

91 (citing Johnson v. United States, 559 U.S. 133, 137 (2010)). “Petitioner’s

state conviction is thus an ‘aggravated felony’ under the INA only if the least

of the acts criminalized by the state statute falls within the generic federal

definition” of an obstruction of justice felony. Esquivel-Quintana v. Sessions,

581 U.S. 385, 389-90 (2017).

If the state statute is not a categorical match for the generic federal

offense, then the state conviction does not subject the noncitizen to removal

under 8 U.S.C. § 1101(a)(43), regardless of the actual facts on which a

conviction rests. See Gonzales, 549 U.S. at 186. However, “there must be a

realistic probability, not a theoretical possibility, that the State would apply

its statute to conduct that falls outside the generic definition of a crime.”

Moncrieffe, 569 U.S. at 191 (internal quotation marks and citation omitted).

Within Title 8, Section 1101(a)(43)(S) does not define “obstruction

of justice,” and this court has likewise declined to define this term. Alwan v.

Ashcroft, 388 F.3d 507, 514 (5th Cir. 2004). This court has, however,

previously used the construction given by the BIA for this phrase. See, e.g.,

United States v. Gamboa-Garcia, 620 F.3d 546, 549-50 (5th Cir. 2010); Alwan,

388 F.3d at 510.

To determine whether an offense is in “relation to obstruction of

justice” in accordance with 8 U.S.C. § 1101(a)(43)(S), the BIA has looked to

federal statutes located at 18 U.S.C. §§ 1501-1521, the chapter pertaining to

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obstruction of justice, and considers “whether the substantive offense would

be punishable under any of the provisions therein.” Alwan, 388 F.3d at 514

(citation omitted); see also In re Cordero-Garcia, 27 I. & N. Dec. 652, 654

(B.I.A. 2019). The government and Lopez agree that the obstruction of

justice offenses listed in 18 U.S.C. §§ 1501-1521 have as elements “(1) ‘either

active interference with proceedings of a tribunal or investigation, or action

or threat of action against those who would cooperate in the process of

justice,’ and (2) a ‘specific intent to interfere with the process of justice.’”

Gamboa-Garcia, 620 F.3d at 550 (emphasis added) (quoting In re Espinoza-

Gonzalez, 22 I. & N. Dec. 889, 893 (B.I.A. 1999)); see also Cordero-Garcia, 27

I. & N. Dec. at 654, 660.2

The Louisiana statute, meanwhile, provides that:

An accessory after the fact is any person who, after the

commission of a felony, shall harbor, conceal, or aid the

offender, knowing or having reasonable ground to believe that

he has committed the felony, and with the intent that he may

avoid or escape from arrest, trial, conviction, or punishment.

An accessory after the fact may be tried and punished,

notwithstanding the fact that the principal felon may not have

been arrested, tried, convicted, or amenable to justice.

LA. REV. STAT. § 14:25. While the statute itself is silent on what kind of

intent suffices, the Louisiana Supreme Court answered this question in

State v. Chism: “[A] person may be punished as an accessory after the fact if

he aids an offender personally, knowing or having reasonable ground to

believe that he has committed the felony, and has a specific or general intent

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2

Conduct may relate to the obstruction of justice even if there is no pending

investigation concerning the underlying felony. Pugin v. Garland, 599 U.S. 600, 602 (2023).

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that the offender will avoid or escape from arrest, trial, conviction, or

punishment.” 436 So. 2d 464, 467 (La. 1983) (emphasis added).

Another Louisiana statute defines specific and general criminal intent,

as follows:

(1) Specific criminal intent is that state of mind which exists

when the circumstances indicate that the offender actively

desired the prescribed criminal consequences to follow his act

or failure to act.

(2) General criminal intent is present whenever there is

specific intent, and also when the circumstances indicate that

the offender, in the ordinary course of human experience, must

have adverted to the prescribed criminal consequences as

reasonably certain to result from his act or failure to act.

La. Rev. Stat. § 14:10.

Lopez argues that she is not removable because the Louisiana statute

sweeps wider than the federal definition of obstruction of justice accepted by

the BIA and this court for two reasons. First, she argues, the Louisiana statute

provides for the conviction of a person with only general intent, while the

federal statute explicitly includes only those who act with specific intent.

Second, Lopez argues that this court’s decision in Gamboa-Garcia imported

an “added knowledge requirement” from the federal accessory after the fact

statute, 18 U.S.C. § 3, that is not present in the Louisiana statute. Because

the Louisiana Supreme Court has clearly stated that § 14:25 is a general

intent statute, we resolve this case on that issue and do not consider Lopez’s

added knowledge requirement argument.

***

The argument put forth by Lopez is straightforward: any potential

federal definition for the offense of accessory contains a “specific intent”

requirement, while the Louisiana Supreme Court has consistently ruled that,

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in Louisiana, it does not. As a result, the Louisiana statute criminalizes more

behavior than the federal offense and it is not a categorical match. In

particular, Lopez argues, in Chism the Louisiana Supreme Court upheld

Chism’s conviction on the basis of general, not specific, intent, because the

court concluded that “the trier of fact could have reasonably found that he

acted voluntarily and not out of fear when he aided [the felon] and that he did

so under circumstances indicating that he believed that it was substantially

certain to follow from his assistance that [the felon] would avoid arrest, trial,

conviction, or punishment.” Chism, 436 So. 2d at 470. The Louisiana

Supreme Court’s language tracked with the Louisiana Revised Statutes §

14:10 language of general, not specific, intent.

The government argues that, despite the language in Chism that states

that a person may be punished as an accessory where she has “specific or

general intent that the offender will avoid or escape from arrest, trial,

conviction, or punishment,” Chism, 436 So. 2d at 467, that language does not

render the statute overbroad.

First, the government argues, in Chism the Louisiana Supreme Court

“made clear” that its definition of general criminal intent “still requires that

the defendant ‘actively desired’ that a felon ‘avoid or escape arrest, trial,

conviction, or punishment’ or that the defendant ‘believed that one of these

consequences was substantially certain to result from his assistance.’”

The government also points to the federal accessory statute, 3 arguing

that it has “the same fundamental mental state” as the Louisiana accessory

statute, because it “criminalizes actions knowingly taken to interfere with the

_____________________

3

For ease of access, the federal accessory statute, again, provides that “[w]hoever,

knowing that an offense against the United States has been committed, receives, relieves,

comforts or assists the offender in order to hinder or prevent his apprehension, trial or

punishment, is an accessory after the fact.” 18 U.S.C. § 3.

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process of justice.”4 The government contends that the federal statute and

the Louisiana statute both “point[] to a nexus between the actions of the

defendant, the defendant’s intent, and obstruction of justice.” In support of

its nexus point, the government cites to Alwan for the proposition that a

petitioner’s knowledge that his refusal to testify would “impede the due

administration of justice” was sufficient to show specific intent to obstruct

justice for the purposes of 8 U.S.C. § 1101(a)(43)(S).5

The government likens the Louisiana accessory statute to a Virginia

accessory-after-the-fact statute that was at issue in Pugin v. Garland, 19 F. 4th

437, 450-51 (4th Cir. 2021). While the government is correct that the

petitioner in that case argued that the statute “fails to include the specific

intent element of the Board’s definition[,]” the Fourth Circuit found it

“clear that Virginia accessory after the fact includes a specific-intent

requirement” and therefore was a categorical match for the federal offense.

Id. at 450-51. Indeed, in that case “the [Virginia Supreme Court] made clear

that mere knowledge of another’s felony and an attempt to conceal it or to

frustrate an arrest could make [a defendant] guilty of other crimes, but not

accessory after the fact,” indicating that “the key to accessory after the fact

under Virginia law is the specific intent to help the felon avoid punishment.”

Id. at 451. The Virginia statute is distinct from the Louisiana statute at issue

here for two reasons: 1) the Louisiana Supreme Court has explicitly stated

_____________________

4

It is unclear what support this contention offers to the government’s position,

because Louisiana law explicitly applies to those who “know[] or hav[e] a reasonable

ground to believe” that a felony has been committed, and it seems unlikely that one could

“knowingly” interfere with the process of justice if she has only “a reasonable ground” to

believe—but does not know—that a felony has been committed in the first place.

5

Alwan was not a categorical approach case. In that case, the petitioner argued that

he had not possessed the specific intent to obstruct justice when he refused to testify in

front of a grand jury, and this court found that he did have specific intent. Alwan, 388 F.3d

at 515.

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that the accessory-after-the-fact statute has a general intent requirement, and

2) “knowledge of another’s felony and an attempt to conceal it or to frustrate

an arrest,” id., is behavior for which one could be convicted under the

Louisiana statute.

Significantly, Louisiana courts of appeal continue to apply Chism and

uphold convictions under § 14:25 based on findings that there was general,

rather than specific intent. See State v. Newton, 129 So. 3d 20, 25 (La. App.

3d Cir. 2013) (“Defendant was fully aware of the felony after being apprised

of it by his son. Defendant’s behavior exhibited, as in Chism, at least the

general intent to aid his son in avoiding the consequence of his actions.]”);

State v. Hall, 875 So. 2d 996, 1003 (La. App. 5th Cir. 2004), writ denied sub

nom. State v. Barnes, 888 So. 2d 834 (La. 2004) (“The statute requires only

the general intent of the offender that the person who committed the felony

will escape arrest, trial, conviction or punishment, and intent may be proven

by circumstantial evidence or inferred.”).

The Chism decision has received some critique from scholars who

believe the “with the intent that he may avoid or escape” language in the

statute is in-and-of-itself a statement of specific intent under Louisiana law.

Among these are the authors of the Criminal Jury Instructions section of the

Louisiana Civil Law Treatise, who provide the following sample jury

instructions for accessory after the fact:

[I]n order to convict the defendant of being an accessory

after the fact, you must find:

(1) that [person] committed [felony]; and

(2) that the defendant knew or had reasonable ground to

believe that [person] committed [felony]; and

(3) that the defendant [harbored, aided, concealed]

[person] [by [describe manner in which the person was harbored,

etc., if alleged]]; and

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(4) that the defendant acted with a specific [general]

intent that [person] avoid or escape from [arrest, trial,

conviction or punishment].6

17 La. Civ. L. Treatise, Criminal Jury Instructions § 10:1 (3d ed. 2012). In

their comments, the authors note that they:

drafted the instruction in light of the comments to La. R.S.

14:11 which clearly indicate that the expression “with the

intent” refers to specific as opposed to general criminal intent.

However, in State v. Mitchell, 337 So. 2d 1189 (La. 1976) and in

State v. Chism, 436 So. 2d 464 (La. 1983), in reviewing the

sufficiency of evidence to sustain an accessory conviction, the

Supreme Court said that only general criminal intent is

required by La.R.S. 14:25. Since a general intent is present

when the offender has a specific intent, the specific intent

instruction is recommended and does not prejudice the

defendant. See La.R.S. 14:10(2). The authors feel that the

Supreme Court may change its position in Mitchell and Chism

if the issue were directly presented.

Id.; see also André Doguet, Comment, The Louisiana Criminal Code and

Criminal Intent: Distinguishing Between Specific and General Intent, 46 La. L.

Rev. 1061, 1067 (1986) (“The court’s interpretation of the statute is

flawed.”).

However, Chism is the law in Louisiana, and cases like Hall and

Newton demonstrate that its general intent requirement is still relevant. See

Newton, 129 So. 3d at 25; Hall, 875 So. 2d at 1003. And, as the categorical

_____________________

6

The government provides, in its analysis of the Louisiana statute, a citation to

what it purports to be the jury instructions from the same source cited here. It omits the

fourth element and replaces it with “the defendant actively desired for the perpetrator to

avoid or escape from arrest, trial, conviction, or punishment.” This version of the jury

instructions does not appear at the citation on either Westlaw or LexisNexis; additionally,

a search on those databases and Google for “the defendant actively desired for the

perpetrator to avoid” yielded no results at all.

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approach cautions us, a “[p]etitioner’s state conviction is . . . an ‘aggravated

felony’ under the INA only if the least of the acts criminalized by the state

statute falls within the generic federal definition” of an obstruction of justice

felony. Esquivel-Quintana, 581 U.S. at 389-90. The categorical approach does

not provide an exception simply because some scholars conclude that a state

supreme court was incorrect, or that it probably did not mean what it stated

it meant. The Louisiana Supreme Court “is the ultimate arbiter of the

meaning of the laws of this state.” Succession of Harlan, 250 So. 3d 220, 223

(La. 2018) (citations omitted). This court will not override the Louisiana

Supreme Court’s statement of Louisiana law by ruling that § 14:25 is

effectively a specific intent statute.

Having determined that La. Rev. Stat. § 14:25 is not a categorical

match for the federal obstruction of justice statute, we now move to Lopez’s

due process claim.

B.

“It is clearly established that the Fifth Amendment of the United

States Constitution entitles aliens to due process of law in deportation

proceedings.” Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997) (citations

omitted). “Due process challenges to deportation proceedings require an

initial showing of substantial prejudice.” Id.; see also Ogunfuye v. Holder, 610

F.3d 303, 307 (5th Cir. 2010). This court has held that “if INS complied with

the statutory mechanism” of 8 C.F.R. § 238.1 when deporting a noncitizen,

“such deportation complies with the standards of due process.” United

States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999).

Lopez points to four specific actions by the DHS that she argues

violated her due process rights in ways that prejudiced her: 1) issuing the

initial FARO before the NOI; 2) cancelling the NOI and reissuing a new NOI

and FARO on the same date; “3) reading documents to Ms. Lopez in English

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instead of Spanish[;] and 4) serving the FARO four months after the NOI

preventing her from contesting the NOI.” Most important, Lopez argues,

were DHS’s issuance of the FARO and the NOI on the same day without

giving her the opportunity to respond to the NOI, and DHS’s failure to serve

the FARO in a timely manner.

According to Section § 238.1:

The alien has ten calendar days to file a written response to the

Notice of Intent. 8 C.F.R. § 238.1(c)(1). In response, an alien

may designate a country of removal; rebut the allegations

supporting the charge; request to review the Government’s

evidence supporting the charge; request an extension of time

to respond; and request withholding of removal under the

Convention Against Torture (CAT). Id. If the alien does not

timely rebut the charges, a DHS officer issues a FARO and the

alien may be removed fourteen days after issuance of that

order. Id. § 238.1(d)(1).

Valdiviez-Hernandez, 739 F.3d at 187; see also Gomez-Velazco v. Sessions, 879

F.3d 989, 992 (9th Cir. 2018) (“To allow an opportunity for judicial review,

the order may not be executed for 14 days unless you waive that waiting

period in writing.”); 8 U.S.C. § 1228(b)(3); 8 C.F.R. § 238.1(f)(1). And, if

the individual requests withholding of removal upon being served with the

NOI, “the deciding officer shall, upon issuance of a Final Administrative

Removal Order, immediately refer the alien’s case to an asylum officer to

conduct a reasonable fear determination.” 8 C.F.R. § 238.1(f)(3).

Similarly, a noncitizen cannot seek review of their FARO in this court

until they have been served with the FARO. “Part of the regime governing

review of removal orders is that the 30-day period for filing a petition does

not commence until the agency properly serves the alien with the order.”

Villegas de la Paz v. Holder, 640 F.3d 650, 654 (6th Cir. 2010); see also

Ouedraogo, 864 F.2d at 378 (“[T]he time for filing a review petition begins to

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No. 23-60248

run when the BIA complies with the terms of federal regulations by mailing

its decision to petitioner’s address of record.”)

Any reading of the facts here shows that DHS did not follow the

procedures that are designated under Section 238. These failures were a

violation of Lopez’s due process rights. See Cardoza Salazar v. Barr, 932 F.3d

704, 709 (8th Cir. 2019) (“DHS issued the FARO on the same day it

provided the requested evidence to [petitioner’s] attorney. This violated the

above-cited regulation and denied [petitioner] the opportunity to rebut the

government’s position with arguments and evidence. This was a

fundamental procedural error and violated [petitioner’s] due

process rights.”); cf. Aguilar-Aguilar v. Napolitano, 700 F.3d 1238, 1245 (10th

Cir. 2012) (finding that DHS improperly issued a FARO and NOI on the

same day, but that petitioner’s due process rights were not violated because

he sought only discretionary relief and “never has contested that he (1) is an

alien; (2) has not been lawfully admitted for residency; (3) has been convicted

of an aggravated felony (and that conviction is final); and (4) is deportable

under 8 U.S.C. § 1227(a)(2)(A)(iii).”).

The government does not contend that it did follow these procedures,

other than to note that Lopez “was provided [reasonable fear] proceedings

and the record shows she was afforded ample opportunity to present a claim

for protection from removal in those proceedings.” Instead, the

government’s primary argument is that, because her Louisiana conviction

constitutes an aggravated felony and she accordingly would have been

precluded from standard removal proceedings under 8 U.S.C. § 1229(a),

Lopez cannot make the “initial showing of substantial prejudice” that is

required under Anwar. Further, the government argues, Lopez’s withdrawal

of her withholding-only application undermines her due process claim.

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But the first argument fails because Lopez’s conviction does not fall

under the aggravated felony definition, and the second misstates the harm of

which Lopez complains. Lopez never asserts she was not given the chance to

present “a claim for protection” in the form of withholding-only

proceedings. Lopez complains that the issuance of the second NOI and the

second unserved FARO on the same day, while she was already in

withholding-only proceedings pursuant to the first unserved FARO,

deprived her of her right to challenge the underlying premise of the second

FARO—that her Louisiana conviction constituted an aggravated felony and

thus rendered her deportable—and prematurely resigned her to the

withholding-only process when she would have otherwise been eligible for

other relief.

Because DHS placed her in withholding-only proceedings before the

government issued the relevant NOI and FARO, and failed to timely serve

the FARO, Lopez faced a catch-22. She could either (1) remain in

withholding-only proceedings without challenging DHS’s aggravated felony

determination, with DHS ready to execute the FARO—and remove her

immediately—if those withholding-only proceedings concluded negatively,

or (2) withdraw her application for withholding-only proceedings in order to

challenge the legal basis of the second FARO and then be able to apply for

asylum, withholding of removal, and relief under CAT in regular removal

proceedings.

Because this contravention of process rendered the legal conclusion

of the second FARO unreviewable before removal, Lopez makes an “initial

showing of substantial prejudice.” Anwar, 116 F.3d at 144. DHS’s failure to

follow the Section 238.1 removal procedures outlined in the regulations

violated her right to due process.

IV.

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No. 23-60248

Finally, we consider remedy.

Lopez was removed to Honduras on June 30, 2023. Under an ICE

policy directive, “[a]bsent extraordinary circumstances, if an alien who

prevails before the U.S. Supreme Court or a U.S. court of appeals was

removed while his or her [petition for review] was pending, ICE will facilitate

the alien’s return to the United States if either the court’s decision restores

the alien to lawful permanent resident (LPR) status, or the alien’s presence

is necessary for continued administrative removal proceedings.” U.S.

Immigration and Customs Enforcement Policy Directive Number

11061.1, Facilitating the Return to the United States of Certain Lawfully

Removed Aliens (Feb. 24, 2012), available at

https://www.ice.gov/doclib/foia/dro_policy_memos/11061.1_current_pol

icy_facilitating_return.pdf (last visited August 14, 2024).

The government suggests that this directive would not be implicated,

because “further administrative proceedings appear unnecessary given that

Petitioner voluntarily withdrew her applications for protection from

removal.” On this, we disagree with the government. As is discussed above,

Lopez was prematurely placed in withholding-only proceedings in

contravention of the procedures delineated in 8 C.F.R. § 238, and she

canceled her withholding-only application only so that she could pursue

judicial review on the substantive issue of whether her Louisiana conviction

constituted an aggravated felony. In doing so, she has not forfeited her right

to seek relief.

This court does not confer immigration benefits on Lopez, nor does it

predict any eventual merits determination by an IJ or the BIA. However,

because Lopez’s original removal “was premised on a mistaken conclusion

of law,” we find that “judicial review would otherwise be frustrated” if

Lopez were not given the opportunity to pursue the forms of relief she would

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have been able to pursue had she not been placed, erroneously, in Section 238

proceedings. Ramirez v. Sessions, 887 F.3d 693, 707 (4th Cir. 2018).

Accordingly, we GRANT Lopez’s petition for review, VACATE

the order of removal, and REMAND to DHS with directions for the

government to facilitate Lopez’s participation in further proceedings,

consistent with this opinion.

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